Ram Pravesh Pandit @ Ram Parvesh Pandit and Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava V. The Union of India through C.B.I.

Cr.Rev./443/2021

AI Insights

The case involves two criminal revisions filed by Ram Pravesh Pandit and Birendra Prasad Sriwastawa against the Union of India through C.B.I., challenging the orders related to their prosecution for alleged involvement in a conspiracy to convert illegal banned currency notes into valuable securities during the demonetization period in India. The revisions were heard together due to their common origin from a single order. The petitioners argued that they were falsely implicated and that the charges did not substantiate the allegations of criminal conspiracy or cheating under the relevant sections of the Indian Penal Code. The court found inconsistencies in the application of law and facts, particularly noting that other accused in similar circumstances were not charge-sheeted, leading to the decision to set aside the lower court's orders and remit the case for re-evaluation.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 800697 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 07-03-2024
• Assessment Year: misc
• Other Referred Cases: M. S. Natarajan Versus Ramasis Shaw and Another, N. Raghavender Versus State of Andhra Pradesh, CBI, Rekha Jain Versus State of Karnataka and Another, M/s Andhra Ferro Alloys Ltd. and Ors. Versus The State of Jharkhand and Anr.
• Laws Referred To: Cr. P. C., Indian Penal Code
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: ANIL KUMAR
• Assessee Lawyers: KUMAR SAURAV
• Keywords: Charge framing; Criminal conspiracy; Criminal Revision; Demonetization; Discharge Petition; KYC norms; Illegal Currency Conversion
• Section: 239; 120-B; 120-B; 420

Judgement Text

"-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 46 of 2020 …. 1. Ram Pravesh Pandit @ Ram Parvesh Pandit 2. Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava …… Petitioners Versus The Union of India through C.B.I. …… Opp. Party With Cr. Revision No. 443 of 2021 …. 1. Ram Pravesh Pandit @ Ram Parvesh Pandit 2. Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava …… Petitioners Versus The Union of India through C.B.I. …… Opp. Party ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioners : Mr. Kumar Saurav, Advocate For the CBI : Mr. Anil Kumar, Addl. S. G. I. ….. JUDGMENT 24/07.03.2024 Both these Criminal Revisions i.e. Cr. Revision No. 46 of 2020 and Criminal Revision No. 443 of 2021 are being heard together and are being disposed of together as they arise out of the common order dated 11.04.2019 passed in R. C. Case No. 03 (A)/2017(EOW) R. 2. The instant Criminal Revision No. 443 of 2021 has been filed on behalf of the petitioners by challenging the order dated 11.04.2019 passed in R. C. Case No. 03 (A)/2017(EOW) R by Sri Ajay Kumar Guria, learned SDJM-cum-Special Judicial Magistrate, Ranchi by which learned SDJM-cum-Special Judicial Magistrate, Ranchi has rejected the discharge petition filed by the petitioner under Section 239 of the Cr. P. C. 3. The instant Criminal Revision No. 46 of 2020 has been filed on behalf of the petitioner challenging the order dated -2- 19.07.2019 passed in R. C. Case No. 03 (A)/2017(EOW) R by Sri Ajay Kumar Guria, learned SDJM-cum-Special Judicial Magistrate, Ranchi by which charges have been framed against the petitioners for the offence under Sections 420 and 120 (B) of the Indian Penal Code. 4. The instant case has been instituted on the basis of complaint to S.P. C.B.I., EOW, Ranchi by the informant Sri B.K. Singh Dy S.P. C.B.I, EOW, alleging therein that he received information from the reliable sources that illegal banned currency notes are being converted into valuable security by opening new accounts at Gamharia Sub Post office without submitting their K.Y.C. and are being subsequently allowed to be withdrawn during demonetization period i.e 09.11.2016 to 30.12.2016 and he conducted surprise check at Gamharia sub-post office Seraikella Kharswan on 07.04.2017. The surprise check at Gamharia Sub Post office revealed that Sri Surendra Pd. Chand while posted and functioning as In-charge Sub-Post Master of Gamharia Sub-Post Office fraudulently and dishonestly entered into a criminal conspiracy with Sri Birendra Prasad Sriwastawa (i.e. petitioner No. 2) Superintendent of Post Office, Sri Sonu Kumar CDS (MC) Gamharia office and Sri Sudhir Chandra Jha and others and in pursuance of the said criminal conspiracy new SB Accounts were opened without fulfilling K.Y.C norms in contravention of the guidelines issued by Govt. of India and RBI and accepted invaded/illegal notes by abusing their official position as Public Servants and facilitated them to be converted into valuable security and into legal lender notes in exchange of illegal and banned notes and currency and thereby cheated Govt. of India. It has also been alleged by the informant that Sri Surendra Prasad Chand and Sri Sonu Kumar in criminal conspiracy with the A/C -3- holders allowed opening of accounts at Gamharia Sub-post Office. It is further alleged that Sri Birendra Pd. Sriwastawa, Superintendent of Post Offices, RMS Dhanbad in pursuance of the said criminal conspiracy got opened A/C No. 648976 in the name of Priya Sriwastawa, A/C No. 648977 in the name of Sarita Sriwastawa and A/C No. 648978 in his name, the informant alleged that Sri Birendra Pd. Sriwastawa had asked Sri Sonu Kumar, pursuant to their criminal conspiracy to open the accounts. Sri Surendra Kumar Chand fraudulently and dishonestly did not obtain the requisite K.Y.C. documents for their A/C's and allowed them to be converted in valuable securities such as T.D.R.N.S.C and also allowed them to withdraw new currency notes during the period of demonetization. Informant further alleged that the Sub- Post Master dishonestly and fraudulently allowed purchase of N.S.C in the names of Sri Anupam Kumar Sriwastwa and Smt. Sarita Sriwastawa son and wife of Birendra Pd. Sriwastawa respectively from the amount deposited in a/c no. 648983 of Smt. Abhilasha Bharti during the said period. The informant further cited certain A/C nos. in which demonetized currency notes were deposited and withdrawn, the informant alleged that the amount deposited in accounts were provided by Birendra Pd. Sriwastawa. The informant alleged that an account no. 648982 was opened in the names of Smt. Kumkum Devi and Sri Sudhir Chandra Jha and Rs, 900000/- was deposited in the account and later on withdrawn. The informant further alleged that Sri Surendra Pd. Chand and Sri Sonu Kumar entered into criminal conspiracy with Sri Birendra Pd. Sriwastawa, Sri Sudhir Chandra Jha and others unknown persons accepted illegal banned currency notes by abusing their official position as public servants, facilitated them to convert, illegal banned currency notes, in exchange of new valued notes -4- and valuable securities and thereby cheated the department of post Govt. of India causing wrongful pecuniary loss of Rs, 21.50 lakhs and corresponding wrongful gain to themselves and others and recommended for a detailed investigation. 5. Heard learned counsel for the petitioners and learned counsel for the State. 6. It is submitted by the learned counsel for the petitioners that impugned order passed by the learned Court below is illegal, arbitrary and not sustainable in the eyes of law. It is submitted that petitioners have been falsely implicated at the instance of the informant. It is submitted that petitioner no. 1, Ram Pravesh Pandit @ Ram Parvesh Pandit is not named in the FIR and no overt act is attributed against him. It is submitted that the allegation of opening an account of Gamharia Sub Post Office without furnishing KYC detail is not correct as the petitioners were not posted in Gamharia Sub Post Office on 08.11.2016/19.11.2016 and the petitioner no. 2 was the Post Master of Gamharia Sub Post Office where the accounts were opened. It is submitted that the petitioners were not aware that KYC norms were complete or not at the time of opening of Bank Account. It is submitted that one account was opened in the name of Smt. Abhilasha Bharti, who is house wife and wife of the petitioner no. 1, Ram Pravesh Pandit @ Ram Parvesh Pandit and it was opened during the pendency of demonetization issued by Government of India at the relevant time and she had merely deposited Rs. 50,000/-. It is submitted that there is no illegality in the transaction done by Abhilasha Bharti i.e. the wife of the petitioner no. 1 and as such, the petitioner no. 1 cannot be at fault with. It is further submitted that no offence under Section 420 and 120(B) of the Indian Penal Code is made out against the petitioners as demonetized notes were deposited in -5- the account of the account holder as per the direction of Government of India by Gazette Notification dated 08.11.2016. It is submitted that C.B.I Dhanbad also registered two similar cases numbered R.C 3(A)/17-D dated 20.04.2017 and R.C 94(A)/17D dated 20.04.2017 and while investigation of both the cases the I.O of the case was informed by Assistant Director (SBI) Department of Posts (FS Division) vide letter dated 01.11.2017 confirmed that no restriction was imposed against purchase of N.S.C/T.D/MIS/ KVP by transfer of fund/balance from the P.O, S/B account as per the existing standing provisions of W.O.S notes were allowed to deposited in P.O SB accounts only and not in other accounts and in this case the N.S.C was purchased by transferring money from the account at Gamharia Sub-Post office which is legally allowed by Govt. of India. It is submitted that after the finding by I.O of the case that no case has been made out final report in both said cases have been submitted by the I.O. Photocopies of FIR and final report of R.C. 3/18 (D) and 4/17 (D) have been enclosed as Annexure-7 series to this revision application. 7. It is submitted that the learned Court below has failed to appreciate that the entire investigation does not reveal that anybody has suffered any wrongful gain and wrongful loss and the story presented by the I. O. that the Government of India has suffered loss is incorrect and the I. O. failed to clarify the same. It is submitted that the learned Court below has failed to appreciate that the only fact on which the I.O. made these petitioners as the accused is that Smt. Abhilasha Bharti, from where account NSC was purchased, is wife of petitioner no. 1 and Anupam Kumar Sriwastawa and Smt. Sarita Sriwastawa are the son and the wife of the petitioner no. 2 respectively. It is submitted that the learned Court below has failed to appreciate that all other, who were -6- named in FIR except the petitioner no. 2, have not been charge sheeted. Thus, the theory of conspiracy has failed and the I.O. failed to point out with whom the petitioners have conspired and as such, the impugned order may be set aside and hence this Criminal Revision may be allowed. 8. Learned counsel for the petitioners, in support of their submission, has relied upon the judgment as follows: (i) M. S. Natarajan Versus Ramasis Shaw and Another reported in 1995 SCC Online Cal 6 (ii) N. Raghavender Versus State of Andhra Pradesh, CBI reported in 2021 SCC Online SC 1232 (iii) Rekha Jain Versus State of Karnataka and Another reported in 2022 SCC Online SC 585 and (iv) M/s Andhra Ferro Alloys Ltd. and Ors. Versus The State of Jharkhand and Anr. passed in Cr. M. P. No. 2185 of 2016. 9. On the other hand, learned ASGI has opposed the prayer and has submitted that the impugned order passed by the learned Court below in both the above Criminal Revision Applications, by which discharge petition has been rejected and charges have been framed, are fit and proper and no interference is required from this Court. It is submitted that the learned Court below has discussed the entire case and the transactions of the wife of the petitioner no. 1 and the petitioner no. 2 in detail and as such, the learned Court below has rightly rejected the discharge petition filed by the petitioners and has rightly framed the charges for the offences under Sections 420 and 120 (b) of the Indian Penal Code against both the petitioners. It is submitted that several witness namely Sanjay Kumar, Ranjan Kumar, Sonu Kumar, Surendra Prasad Singh, Harendra Singh, Lapaso Manjhi, Durga Prasad Mandal, Birendra Kumar Mishra, whose statements have been recorded in -7- para-6, 14, 17, 18, 20, 21, 22 and 24 of the case diary have supported the prosecution case. 10. It is further submitted that the prosecution case is fixed at the stage of charges. It is submitted that the meticulous examination of statements of witnesses are not required to be seen at this stage. It is submitted that the petitioners were working in the Post Office and they have connived together to dishonestly cheat the Union of India and as such, both the Criminal Revision Applications may be dismissed. 11. Perused the Lower Court Records, FIR and considered the submissions of both the sides. 12. It appears that on 08.04.2017, CBI and instituted the FIR against four persons namely (1) Shri Surendra Prasad Chand, Postal Assistant, Adityapur Industrial Area Post Office, Saraikela- Kharsawan, Jharkhand (2) Sri Sonu Kumar, Gramin Dak Sewak (Mail Delivery), Branch Post Office, Baramari attached to Gamharia sub post office, District- Saraikela-Kharsawan (3) Shri Birendra Prasad Srivastava, (petitioner no. 2), who is Superintendent of Post Office, RMS, Dhanbad and (4) Shri Sudhir Chandra Jha, Central Jail, Ghaghidih, Jamshedpur and other unknown persons. There are certain accusations against the petitioners also, hence the same are not elaborately discussed here. 13. It is also alleged that Birendra Prasad Sriwastawa (petitioner no. 2) asked the Sonu Kumar to get opened account in the name of Priya Srivastava and Sarita Srivastava and Sub Post Master dishonestly and fraudulently allowed purchase of NSC in the name of Shri Anupam Kumar Srivastava and Smt. Sarita Srivastava, who are the son and wife of Shri Birendra Prasad Sriwastawa (petitioner no. 2) respectively from the amount deposited in A/C No. 648983 of Smt. Abhilasha Bharti (who is -8- wife of the petitioner no. 1) within the period 21.11.2016 to 23.11.2016. 14. It transpires that the charge sheet was submitted on 01.07.2017 before the learned Special Judge, CBI against petitioner no. 1, Ram Pravesh Pandit @ Ram Parvesh Pandit and the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava. 15. It has also been stated that however, Surendra Prasad Chand, Sonu Kumar and Sudhir Chandra Jha, have not been charge sheeted. 16. It further appears from perusal of Annexure-7 series that in same nature of allegation the cases instituted by CBI, ACB, Dhanbad bearing RC 3 (A)/2017-D dated 20.04.2017 and several accused persons namely Swapan Kumar Chandra, Karan Kumar Singh, Sirjan Singh, Manesh Kumar Bauri, Rohit Kumar Keshri, Smt. Aruna Devi, Om Prakash Keshri, Smt. Seema Devi, Ravi Kumar, Smt. Nita Devi, Raunak Gupta, Santosh Gupta, Lokesh Gupta, Pramod Seth, Braj Mohan Saw respectively were not charge sheeted while submitting the report on 22.12.2017 by CBI. 17. It further transpires that similar FIR instituted by CBI bearing RC 4 (A)/2017-D dated 20.04.2017, but the police had not charge sheeted Vinod Kumar, Sanjay Kumar Tiwary, Sanjay Balmuchu, Bharat Bhushan, Amrish Anand, Ashwini Anand @ Ashwini Kumar, Magadh Malti, Samima Parween, Ms. Priya Agarwal, Smt. Premiata Devi, Ayush Agarwal, Indra Bhushan Singh respectively had not been charge sheeted under Section 120- B read with 420 of the Indian Penal Code and Section 13 (2) read with 13 (1)(d) of PC Act, 1988. 18. It appears that both the FIR have been lodged after the period of demonetization was over and it relates to depositing -9- certain amounts in the accounts in same post offices. 19. So far as the impugned order dated 11.04.2019 is concerned, it would appear that certain amount had been deposited and withdrawn by the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava on 18.11.2016, 21.11.2016 and 23.11.2016 respectively and vouchers were prepared by Sonu Kumar, Harendra Singh and Ram Pravesh Pandit i.e. the petitioner no. 1 respectively and vouchers were passed by Surendra Prasad Chand. 20. Similarly, it has also been pointed out that certain amount had been deposited and withdrawn from the S/B Account of Priya Srivastava and Sarita Srivastava, who are daughter and wife of the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava whereas certain amount had also been deposited and withdrawn from the SB account of Abhilasha Bharti wife of the petitioner no. 1, Ram Pravesh Pandit and vouchers were prepared by Sonu Kumar, Harendra Singh and Ram Pravesh Pandit i.e. the petitioner no. 1 respectively and vouchers were passed by Surendera Prasad Chand and Sanjay Kumar. 21. It also reveals that however, Sonu Kumar, Harendra Singh, Sanjay Kumar and Surendra Prasad Chand have not been charge sheeted by the CBI. 22. The Court below has referred the certain transaction of one Lalita Devi wife of Santosh Pandit and one Sudhir Chandra Jha and his wife Kumkum Devi, but the same is not concerned with this case. 23. From perusal of the impugned order dated 11.04.2019 passed by the learned Court below, it would appear that the learned Court below has rejected the discharge petition on the ground that there was transfer of Rs. 1,15,000/- on 24.12.2016 for purchasing -10- NSC from passbook is the Joint Account in the name of Smt. Sarita Srivastava and Sri Anupam Srivastava and Smt. Abhilasha Bharti had signed the withdrawal slip on 24.12.2016 for withdrawal of Rs. 1,15,000/- from the Saving Bank Account. 24. Thus, at best this is a case of transaction of Rs. 1,15,000/- between Smt. Abhilasha Bharti wife of the petitioner no. 1, Ram Pravesh Pandit on the one hand and Smt. Sarita Srivastava and Sri Anupam Srivastava i.e. wife and son of petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava on the other hand, but no cash amount was deposited by her husband Ram Pravesh Pandit i.e. Petitioner No. 1 and no amount has been withdrawn by the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava. 25. It also appears that CBI has not submitted charge sheet against both these petitioners for the offence under Section 13 (2) read with 13(1) (d) of the PC Act, 1988. 26. No doubt, so far as the claim of parity by the petitioners with other persons in other cases is concerned, the same may not be relevant for the purpose of the present case at this stage, but action of the O.P. as contained in Annexure-7 series, which are the allegations made in the FIR and charge sheet of R. C. Case No. 03 (A)/2017(EOW) R and R. C. Case No. 04 (A)/2017(EOW) R, shows that in the similar circumstances, the other several accused persons namely Vinod Kumar, Sanjay Kumar Tiwary, Sanjay Balmuchu, Bharat Bhushan, Amrish Anand, Ashwini Anand @ Ashwini Kumar, Magadh Malti, Samima Parween, Ms. Priya Agarwal, Smt. Premiata Devi, Ayush Agarwal, Indra Bhushan Singh have been left out by the CBI by not submitting charge sheet against them, however, the petitioners have been charge-sheeted and subjected to face trial, although, there is no specific allegation -11- against the petitioner no. 1, Ram Pravesh Pandit in the FIR and the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra was not present at Gamahria Police Office on the date of alleged occurrence. 27. It transpires that one Anupam Sriwastawa and Smt. Sarita Sriwastawa, who are the son and wife of the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava, had requested said Abhilasha Bharti to get NSC certificate for Income Tax rebate and Smt. Abhilasha Bharti had applied for issuance of NSC in the name of Anupam Sriwastawa, and NSC was issued of Rs. 1,15,000/-. However, when CBI started investigation, they had seized the withdrawal form by which on the application of Abhilasha Bharti one NSC of Rs. 1,15,000/- was issued in the name of Anupam Sriwastawa and and Smt. Sarita Sriwastawa and even RTI information received by Abhilasha Bharti, marked as Annexure-6 of this Criminal Revision Application, which is letter dated 10.04.2019 sent by Senior Superintendent of Post Offices, Singhbhum Division, Jamshedpur, which would reveal that there was no illegality in purchase of NSC, which is reply by Senior Superintendent of Post Offices, Singhbhum Division, Jamshedpur to Smt. Sarita Srivastva on 10.04.2019 by which it has been informed that issue/purchase of NSC in the name of purchaser by the mode of transfer of funds from a POSB account of another holder is permissible under rules of Department of Post Office. 28. So far as the judgement passed in the case of Asit Bhattacharjee Vs. M/s Hanuman Prasad Ojha & Ors. which was disposed of on 15.05.2007 is concerned, the same is not applicable in the facts and circumstances of the above cases as in the present case, the Hon’ble Supreme Court has directed for carrying other investigation by CB-CID of the State of Madhya Pradesh and the -12- respondent- accused were directed to surrender before the CJM, Allahabad and file their application for grant of bail and certain other directions were also given and the order was passed by the Hon’ble Supreme Court in exercise of their extraordinary jurisdiction under Article 142 of the Constitution of India. 29. In the case of M. S. Natarajan Versus Ramasis Shaw and Another reported in 1995 SCC Online Cal 6 at para-6 as follows:- “Para-6:- In order to constitute an offence under Section 420, I.P.C., there must be some inducement by the accused petitioner to the complainant at the initial stage. In the instant case, the cheques were given to the complainant opposite party not during the time of transaction which took place subsequent to 27th October, 1991 and supply of the materials was complete on 30th January, 1992 and the cheques were given subsequent to that. So during the time of transaction no cheque was given to the complainant opposite party by the accused petitioner; only a promise was made that payment should be made within ninety days from the date of delivery of the materials. The deposition of the complainant on oath as P.W. 1 is that on getting the order of supply from the accused petitioner the complainant opposite party had gone to Madurai, verified about the conduct of the accused and talked to the accused regarding his order. After being satisfied, he started supplying materials. So from his own deposition it will evince that during the time of the order and during the time of the talk the complainant opposite party satisfied himself about the conduct of the accused petitioner. So during the time of the transaction there was no inducement. If there was no inducement at the initial stage, subsequent inducement will not constitute the offence under Section 420 of the Indian Penal Code. As there was no initial inducement in this case, the case under Section 420, I.P.C., is not maintainable.” 30. It has been held in the case of N. Raghavender Versus State of Andhra Pradesh, CBI reported in 2021 SCC Online SC -13- 1232 at para-46. 47, 48 and 67 as follows:- “Para-46:- Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine. Para-47:- It is paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. Para-48:- It is equally well-settled that the phrase ‘dishonestly’ emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction. It is equally important that for the purpose of holding a person guilty under Section 420, the evidence adduced must establish beyond reasonable doubt, mens rea on his part. Unless the complaint showed that the accused had dishonest or fraudulent intention ‘at the time the complainant parted with the monies’, it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. Para-67:- So far as the charge under Section 420 IPC is concerned, once again, the best and the only person who could -14- throw light on whether or not he had voluntarily agreed to transfer his FDR amount in the account of the Academy or there was an element of inducement, cheating or a false promise, was B. Satyajit Reddy himself who has chosen not to enter the witness box. In the absence of even an ordinary complaint by B. Satyajit Reddy regarding misuse of his FDRs, it will be too far- fetched to hold that the Appellant had any mens rea to deceive or to misappropriate or destroy valuable property of B. Satyajit Reddy.” 31. It has been held in the case of Rekha Jain Versus State of Karnataka and Another reported in 2022 SCC Online SC 585 at para-11 as follows:- “Para-11:- As per Section 420 of IPC, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, can be said to have committed the offence under Section 420 of IPC. Therefore, to make out a case against a person for the offence under Section 420 of IPC, there must be a dishonest inducement to deceive a person to deliver any property to any other person. In the present case, there is no allegation at all against accused – Rekha Jain of any inducement by her to deceive and to deliver the gold jewellery. The allegations of dishonest inducement and cheating are against her husband – accused – Kamalesh Mulchand Jain. Therefore, considering the allegations in the FIR/complaint as they are, and in the absence of any allegation of dishonest inducement by Rekha Jain, it cannot be said that she has committed any offence under Section 420 of IPC for which she is now chargesheeted. Therefore, the High Court has committed a grave error in not quashing the criminal proceedings against Rekha Jain for the offence under Section 420 of IPC. This is a fit case where the High Court could have exercised its powers under Section 482 of Cr.PC and to quash the criminal proceedings against Rekha Jain for the offence under Section 420 of IPC.” -15- 32. It has been held in the case of M/s Andhra Ferro Alloys Ltd. and Ors. Versus The State of Jharkhand and Anr. passed in Cr. M. P. No. 2185 of 2016 vide order dated 01.11.2022 at para-9 and 10 as follows:- “Para-9:-So far as section 406 IPC is concerned, that is the punishment of criminal breach of trust. Criminal breach of trust is defined under section 405 IPC. Section 415 IPC defines cheating and in order to constitute an offence of cheating there must be fraudulent or dishonest intention at the time of making promise. It is well known that for section 420 IPC there must be inducement from very beginning to cheat which is absent in the case in hand. In this regard, a reference may be made in the case of “Vesa Holdings P.Ltd. and Anr. vrs. State of Kerala and Ors.” reported in 2015 (2) East Cr.C. 226 (SC). Paragraph nos. 8 and 9 of the said judgment are quoted hereinbelow:- “8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. 9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal -16- proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.” Para-10:- This Court in a proceeding under section 482 Cr.PC is required to be circumspect in considering such application as this Court cannot conduct a roving enquiry or sift through the evidences if the same are not unimpeachable in nature. However, if on considering the allegations and the documents which are not denied by the opposite party no.2 this Court can exercise its inherent power under Section 482 of Cr.P.C to prevent the abuse of the process of the Court and the miscarriage of justice. Section 482 Cr.PC and Article 226 of the Constitution of India are on the same footing as has been held by the Hon’ble Supreme Court in the case of “Pepsi Foods Limited and Anr. vrs. Special Judicial Magistrate” reported in (1998) 5 SCC 749. This case is arising out of commercial transaction. There is no deceiving by the petitioners from initial stage which is mandatory for proving under section 420 IPC which is absent in the case in hand.” Thus the above judgments are not applicable in the facts and circumstances of the present case. -17- 33. Hence in the view of the above impugned order is not proper and liable to be set aside. 34. Thus, the order dated 11.04.2019 passed in R. C. Case No. 03 (A)/2017(EOW) R by Sri Ajay Kumar Guria, learned SDJM- cum-Special Judicial Magistrate, Ranchi is set aside in the interest of justice and the matter is remitted back to the learned Court below i.e. Sri Ajay Kumar Guria, learned SDJM-cum-Special Judicial Magistrate, Ranchi /or his successor Court to pass a fresh order within a period of eight (8) weeks from the date of receipt of a copy of this order. 35. So far as Criminal Revision No. 46 of 2020 is concerned, it appears that charges have been framed against the petitioners for the offences under Sections 420 and 120 (B) of the Indian Penal Code on the ground that NSC of Rupees Eight Lakh was purchased in the joint name of Sarita Srivastava and Anupam Srivastava wife and son of the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava on 24.12.2016 from Saving Bank Account of Smt. Abhilasha Bharti during demonetization period by opening new account in the name of Abhilasha Bharti. Thereafter, Rs. 1,15,000/- has been credited in the account of Smt. Abhilasha Bharti through Cheque Dated 15.04.2017 issued by the Anupam Srivastava from his Bank Account maintained at City Bank, New Delhi and cheque was presented by Jamshedpur Head Post Office for clearing on 16.05.2017 and account was credited on 26.05.2017. Thereafter, the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra Prasad Srivastava obtained wrongly gain of Rs. 1,15,000/-, which appears to be contrary as above transactions between Abhilasha Bharti on the one hand and Smt. Sartia Srivastava and Anupam Kumar Srivastava on the other hand and it is a purely personal -18- transaction among themselves and the petitioners appear to have implicated only in this case as the petitioner no. 1, Ram Pravesh Pandit is the husband of Abhilasha Bharti and the petitioner no. 2, Birendra Prasad Sriwastawa @ Birendra is the husband of Sarita Srivastava where vouchers prepared by Sonu Kumar and Harendra Singh and passed by Surendra Prasad Chand, and who have not been charge-sheeted by the CBI. 36. Thus, the impugned order is sustainable and as such, the impugned order dated 19.07.2019 passed in R. C. Case No. 03 (A)/2017(EOW) R by Sri Ajay Kumar Guria, learned SDJM-cum- Special Judicial Magistrate, Ranchi by which charges have been framed against the petitioners under Sections 420 and 120 (B) of the Indian Penal Code is set aside and the case is remitted back to the Court of Sri Ajay Kumar Guria, learned SDJM-cum-Special Judicial Magistrate, Ranchi/or his Successor Court and the learned Court below shall pass a fresh order within a period of eight weeks from the date of receipt/production of a copy of this order. 37. Thus, both the Criminal Revisions i.e. Criminal Revision No. 46 of 2020 and Criminal Revision No. 443 of 2021 are allowed and the matter is remitted back to the learned Court below with the above observations. (Sanjay Prasad, J.) Kamlesh/N.A.F..R. "